BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090012541 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states, in effect, that he is requesting an upgrade so that he can receive medical and employment benefits.

3.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 20 May 1980.  He was trained in and awarded military occupational specialty 31M (Multichannel Communications Equipment Operator). 
The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 3 June 1981, the applicant received nonjudicial punishment for leaving his appointed place of duty without proper authority.  His imposed punishment was a forfeiture of $150.00 pay, a reduction to pay grade E-2 (suspended for 90 days), and 30 days of extra duty.

4.  On 19 August 1981, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 13 to 29 July 1981.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $250.00 pay, and confinement at hard labor for 30 days.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows the applicant was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court-martial on 28 October 1981 and that he received a UOTHC discharge.  It further shows that at the time he had completed a total of 1 year, 3 months, and 6 days of creditable active military service and he had accrued 61 days of lost time due to being AWOL.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The separation authority may direct issuance of a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  A UOTHC discharge is normally appropriate for a Soldier who is discharged under the provisions of chapter 10.

9.  Paragraph 3-7a of the same regulation provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded so that he can receive medical and employment benefits was carefully considered.  However, the Board does not upgrade discharges merely to provide benefits.

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization for the applicant's final discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090012541



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ABCMR Record of Proceedings (cont)                                         AR20090012541



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